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Home » Prahlad v. State of U.P.

Prahlad v. State of U.P.

Penal Code, 1860 – Sections 302, 324, 149, 24 – Evidence Act, 1872 – Section 3 – Rustic Witnesses – Witnesses are rustic villagers, uneducated, men of low profile, doing agricultural work – Such witnesses cannot be expected to possess the photographic memory and recall details of the incident mathematically. [Para 27]

Evidence Act, 1872 – Section 3 – Interested Witnesses – The term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some anonymous or for some other reason. [Para 36]

Citations : 2022 Cri.L.J. 2363


HIGH COURT OF JUDICATURE AT ALLAHABAD
SUNITA AGARWAL; VIKAS KUNVAR SRIVASTAV, JJ.
Order Date :- 12.04.2022
CRIMINAL APPEAL No. 2169 & 2170 of 1983
Prahlad and Others v. State of U.P.

Counsel for Appellant :- R.B.Sahai, Ankit Saran,Om Prakash Yadav, Pankaj Malviya (A.C.), Pavan Kumar, Yashwant Pratap Singh, Brijesh Sahai, Himanshu Srivastava

Counsel for Respondent :- D.G.A.

Vikas Kunvar Srivastav, J.

1. The instant two criminal appeals have arisen from the judgment and order of conviction and sentence dated 14.09.1983 passed by the learned Additional Sessions Judge, Deoria in Sessions Trial No.92 of 1982, under Sections 147, 148, 302/149, 324/149 of the Indian Penal Code, 1860.

2. It would be relevant and pertinent to mention, at the very outset, that initially in the written complaint and the first information report registered thereon by the police against five accused persons namely (1) Prahlad, S/o Ram Hit Yadav, R/o Village Bhimpur, (2) Ram Oudh, S/o Ram Hit Yadav, R/o Village Bhimpur (3) Prahlad S/o Bhirgun, R/o Village Moora Dih, (4) Sudama of Village Chali Chaur, Police Station Rudrapur and (5) Brijraj S/o Mahipat Yadav, R/o Village Khairaich, Police Station Rampur Karkhana, District Deoria, the case was committed to the sessions for trial against the Prahlad, S/o Ram Hit Yadav, R/o Village Bhimpur, Ram Oudh, S/o Ram Hit Yadav, R/o Village Bhimpur, Prahlad S/o Bhirgun, R/o Village Moora Dih and Brijraj S/o Mahipat Yadav, R/o Village Khairaich, Police Station Rampur Karkhana, District Deoria for the reason that the accused Sudama died before the committal of the case in a police encounter.

3. After completion of the trial, learned Additional District and Sessions Judge, Deoria recorded conviction of accused persons as under:-

(I) Ram Oudh – convicted under Sections 147, 302 read with Section 149, 324/149 of the Indian Penal Code, 1860 and is sentenced life imprisonment for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and to undergo R.I. for a period of four months for the offence punishable under Section 147 of the Indian Penal Code, 1860 and to undergo R.I. for a period of one year for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code, 1860.

(II) Prahlad S/o Bhirgun – convicted under Sections 147, 302 read with Section 149, 324/149 of the Indian Penal Code, 1860 and is sentenced life imprisonment for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and to undergo R.I. for a period of four months for the offence punishable under Section 147 of the Indian Penal Code, 1860 and to undergo R.I. for a period of one year for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code, 1860.

(III) Prahlad S/o Ram Hit Yadav – convicted under Sections 148, 302/149 , 324/149 of the Indian Penal Code, 1860 and is sentenced life imprisonment for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and to undergo R.I. for a period of six months for the offence punishable under Section 148 of the Indian Penal Code, 1860 and one year R.I. for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code, 1860.

(IV) Brijraj – convicted under Sections 148, 302/149, 324/149 of the Indian Penal Code, 1860 and is sentenced life imprisonment for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and to undergo R.I. for a period of six months for the offence punishable under Section 148 of the Indian Penal Code, 1860 and one year R.I. for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code, 1860.

4. Criminal Appeal No.2170 of 1983 has been preferred by the appellants (1) Prahlad, S/o Ram Hit Yadav, (2) Brijraj S/o Mahipat Yadav and (3) Ram Oudh, S/o Ram Hit Yadav. Learned counsel Sri Yashwant Pratap Singh put forth the arguments on behalf of the only surviving appellant Brijraj in this appeal.

5. Criminal Appeal No.2169 of 1983 has been preferred on behalf of the sole appellant Prahlad, S/o Bhirgun separately against the same judgment of conviction and order of sentence described here in above. Learned senior counsel Sri Brijesh Sahai assisted by Sri Himanshu Srivastav, learned Advocate has argued the case on behalf of the said appellant.

6. The record reveals that during the pendency, in Criminal Appeal No.2170 of 1983, Prahlad, S/o Ram Hit Yadav and Ram Oudh, S/o Ram Hit Yadav had died and consequent thereto the appeal to the extent of the aforesaid deceased appellants Prahlad and Ram Oudh were abated vide order dated 23.11.2015, and as such, in Criminal Appeal No.2170 of 1983, the only surviving appellant is Brijraj.

7. The record further shows that accused “Prahlad” (of Village Moora Dih) is on bail granted by this court whereas appellant “Brijraj” in Criminal Appeal No.2170 of 1983 is in jail.

8. To abdicate the confrontation with probable chaos by reason of sameness in the name of two accused in the factual matrix, in our discussions we shall address hereinafter, wherever needed, the accusedappellant Prahlad in Criminal Appeal No.2170/1983 as Prahlad (of Village Bhimpur) and the accused-appellant Prahlad in Criminal Appeal No.2169/1983 as Prahlad (of Village Moora Dih).

(I) Factual Matrix

9. The first informant (P.W.-1) Ishwar S/o Deu, R/o Village Moora Dih, Police Station Kotwali, District Deoria gave a written information in the Police Station Kotwali, District Deoria on 12.04.1979 at about 09:30 P.M., under his thumb impression, about the killing of his nephew namely “Ramashre Yadav” at about 08:30 P.M. to 08:45 P.M. in the incident of bombing by accused persons five in number namely (1) Prahlad (of Village Bhimpur), (2) Ram Oudh, (3) Prahlad (of Village Moora Dih), (4) Sudama and (5) Brijraj on the spot of incident located near the Railway Station, Deoria in front of Octroi Outpost (Chungi ghar) where he was running his pavement shop of lassi and squash. The informant at the relevant time of the incident complained of was on his shop neighbouring to that of his nephew “Ramashre”, talking with his relative “Bahadur Yadav” (P.W.-2). His nephew “Ramashre” was making lassi on his shop. At about 08:30 P.M. to 08:45 P.M., the above named accused persons came together pouncing from the side of the railway station towards the shop of Ramashre. Prahlad (of Village Moora Dih) shouted exhortingly, “this is the man Ramashre, kill him (मारो साले को) ”, persuant thereto Sudama, Prahlad (of village Bhimpur) and Brijraj made a simultaneous throw of hand grenades over Ramashre. The informant and Bahadur ( P.W.-2) raised alarm whereupon Banshi (P.W.-3) of Village Gosai Ka Chakra, Police Station Salepur, Hari Yadav of village Bharwali, Tola Mauwari, Police Station Kotwali, District Deoria, Ram Ji of village Moora Dih and numerous other people rushed to the spot and chased the fleeing assailants but they ran away passing through the railway station towards Mal Godam throwing bombs on the chasing crowd. The informant’s nephew died instantly on the spot sustaining blast injuries of bombs. With him one of his customer also got injured (P.W.-5). The spot of the incident was illuminated from the electricity light coming from the neighbouring shops. In the written complaint itself, motive of the accused persons for killing Ramashre is also set forth stating that the deceased “Ramashre Yadav” arraigned and convicted by the Sessions Court in the charge of murder of brother of Prahlad (of village Moora Dih) namely Shyama, was enlarged on bail in appeal by the High Court. This is why, Prahlad (of Village Moora Dih) and his companions hatched enmity with the deceased “Ramashre Yadav” which led them to kill him.

10. The first information report was registered as Case Crime No.132 of 1979, under Sections 147, 148, 149, 302 and 307 of the Indian Penal Code, 1860, at the Police Station Kotwali, District Deoria. The written information dated 12.04.1979 was reduced into writing by one Suneet Kumar on factual narration of the incident by the first informant “Ishwar”. This written information proved by the first informant Ishwar as P.W.-1 is Ex. Ka-1, on the basis of which the first information report was registered and proved by P.W.-6, the Investigating Officer which is Ex. Ka-3.

11. The Investigating Officer Anwarul Aziz, Sub Inspector of Police in Police Station Kotwali, District Deoria (PW-6) recorded the statement of the first informant at the police station after registration of the first information report and then proceeded to the spot where he enquired the dead body in inquest proceeding, prepared it’s report and other connected papers. The dead body was dispatched with constable Vikram Singh and Bhagirathi for post mortem. On 30.04.1979 at about 0:05 hours, he recorded the statements of witnesses of inquest and eye witnesses named in the complaint viz. Bahadur and Rajvanshi @ Banshi, prepared the site plan, collected the blood stained soil and simple soil from the earth of the spot of incident and prepared the relevant memos. Prosecution proposed to prove the case before the Court by witnesses and documents given herein below in the table for the purpose of easy reference:-

P.W.-1, the informant,

Ishwar and eye witnesses

Proved the written complaint

P.W.-2 Bahadur, the eye witness

P.W.-3 Rajvanshi, the eye witness

P.W.-4 Dr. M.Jama

Proved Post mortem report Ex. Ka-2.

P.W.-5 Dwarika Nath

Tiwari, injured witness

P.W.-6 Anwarul Aziz, the

Investigating Officer

1. Proved Chik Report Ex. Ka -3.

2. G.D. entries No.46 Ex. Ka -4.

3. Inquest report Ex. Ka -5.

4. Photo of the dead body Ex. ka -6.

5. Letter sent with dead body for post mortem Ex. Ka-7.

6. Sealed sample Ex. Ka -8.

7. Form No. 33 Ex. Ka -9.

8. Chalan Dead Body Ex.Ka -10.

( as in up to 12.04.1979)

9. Site Map Ex. Ka -11.

10. Sealed materials from the spot Ex. Ka12.

11. Blood stained soil and simple soil from the earth of the spot Ex. Ka-13.

12. The residues of blasted bombs and sealed samples Ex. Ka-14.

13. Charge sheet Ex. Ka-15 and Ex. Ka -16.

P.W.-7 Dr. J.N. Thakur

Proved injury report of the injured witness.

Thre e witnesses in defence

Mahadeo Mishra as D.W.-1

Anardan Singh as D.W.-2

Sacchidanand Mani

Tripathi as D.W.-3

(II) Argument of learned counsels for the appellants

We keeping in mind the present two appeals being one of the oldest pendency since long for a period of 40 years, gave an anxious and lengthy hearing to the learned counsels so as to decide the matter.

12. Learned senior counsel Sri Brijesh Sahai, opened the argument impressing on the fact of the role assigned in the first information report itself to the accused-appellant Prahlad (of Village Moora Dih) of exhorting the other accused. He submitted that this role of exhortation, as usually seen, is ornamental only to falsely implicate the said accused for some otherwise reasons with the other culprits in the commission of the offence. In the present case, the purpose of false implication is nothing but to bring the number of the accused atleast to the strength of five so as to label charge of offence under Section 147, 148 and 149 in aid of other relevant sections of the Indian Penal Code, 1860. This is why the first information report is registered Ante-timed. Eye witnesses are posed to have presence over the spot of incident on relevant date and time falsely in fosterage of their enmity with the accused and relation with the first informant and the deceased. They are heavily interested witnesses whose evidence cannot be accepted for reliance unless scrutinized thoroughly.

It is argued that the identity of the accused allegedly involved in the commission of offence through test identification parade or otherwise is not established.

The doubt in chronological sequence of procedural events in the investigation starting from submitting the information of the incident to the police, inquest proceeding, sending the dead body for the post mortem, the letter sent with dead body referring post mortem, the special report, G.D. entry etc. is also hammered. It is argued that some vital stages of the proceeding even suffers from the lack of the details and description of case crime number, relevant sections of the Indian Penal Code, 1860. Anomalies as to the time and date in the paper under proceedings of the investigation, irregular way of filling blanks in such papers, all amply show that the first information report was registered some time at later stage but shown as entered promptly in the first information report. As such, first information report being ante timed, has lost it’s value for credence.

Learned senior counsel argued that no independent eye witness had been examined by the Investigating Officer, the scribe of the written report Suneet Kumar also had not been produced by the prosecution for examination before the trial court. Medical evidence does not support the eye witness account of the incident in question.

13. Learned counsel Sri Yashwant Pratap Singh in Criminal Appeal No.2170 of 1983 while putting forth the argument on behalf of the only surviving appellant “Brijraj” adopted mostly all the arguments made by the learned senior counsel Sri Brijesh Sahai in Criminal Appeal No.2169 of 1983. In addition, he vehemently impressed on the false implication of the appellant Brijraj in collusion with the local police for the reason of his criminal antecedents. He further argued that the accused-appellant was not actually present on the spot of incident, thus, his alleged involvement in the commission of the offence in question is false. The witness related to the first informant and the deceased being heavily interested in consultation to the police, falsely deposed with regard to the identity and involvement of the accused-appellant as participant with the other coaccused in commission of killing the deceased/victim of the incident.

Learned counsel has lastly argued that even the witnesses cannot be held to have seen the incident and the accused persons at the relevant time of commission of the offence in question for the reason of darkness of the night at about 08:30 P.M. to 08:45 P.M. The Investigating Officer in the site map prepared by him had not shown any source of light on or in the vicinity of the place of incident. The site map prepared by him is proved in the course of examination before the Court which is Ex. Ka-11. He argued that eye witness account of bombing by four accused is also not corroborated with the medical evidence of blast injuries on the dead body which reports only one blast injury.

All the learned counsels, thus, linked the falsity of the allegation of bombing by the accused persons with the lodging of the first information report ante timed unless the police had not chosen and got up the required number of accused persons. Lastly, they set forth the criminal character of the deceased himself as indulged in criminal activities, having enmity with numerous other rivals in connection therewith as the reason that he might have been killed by some anonymous assailants. It is urged that the informant being inimical with the appellants falsely implicated him having deep interest in seeing him behind the Bars.

(III) Arguments of learned Additional Government Advocate

14. Learned A.G.A. in reply to the arguments made by the learned counsels for the appellants submitted that the first information report had been lodged promptly by the first informant whose presence on the spot was quite probable and natural. The sequence of events happened on the spot of incident at the relevant date and time at about 08:30 P.M. to 08:45 P.M. as stated by him (P.W.-1) in the course of examination before the trial judge is quite a natural eye witness account. There is no question of enmity as argued by the learned counsel for the appellant Prahlad (of Village Bhimpur) with the first informant. There is no suggestion to this effect in cross-examination put before the P.W.-1. Time taken in giving information of the incident in writing and submitting the same to the police has been reasonably explained in the evidence of P.W.-1. There is no suggestion to the P.W.-1 and P.W.-6 as to the written information having been changed or altered. Time of giving the written information is duly proved. Lodging of the first information report by the Head Moharir is proved in his absence, by the P.W.-6, the Investigating Officer on the basis of the entries in the General Diary maintained in the police station for the purpose. P.W.-6, the Investigating Officer being acquainted with the hand writing of the constable clerk (Head Moharir), thus, duly proved the first information report lodged promptly within naturally practicable interval of time from the occurrence of the incident. The argument as to the enmity is of no avail as it may act like a two way sword / double edged weapon. In circumstance of alleged and proved on evidence even it may be held as cause for false implication otherwise, generally it acts as the motive for activating the offence quite naturally and probably.

Learned A.G.A. submitted that the judgment of conviction and order of sentence was correctly passed after due appreciation of evidence on record and the appeal is liable to be dismissed. Judgment of conviction and order of sentence deserves to be affirmed.

15. Before going deep with the merit of the arguments advanced by the contesting counsels, material on record as evidence and the judgment of the trial judge recording the conviction and sentence, it would be pertinent and relevant to state about the charges framed by the learned Additional Sessions Judge, Deoria against the accused persons in the trial.

16. The accused Ram Oudh and Prahlad (of Village Moora Dih) were charged under Section 147, 302/149 and 324/149 of the Indian Penal Code, 1860 vide order dated 21.04.1982 passed by VI Additional Session Judge, Deoria; whereas the accused Prahlad (of Village Bhimpur) and Brijraj were charged under Section 148, 302/149, and 324/149 of the Indian Penal Code, 1860 vide order dated 21.04.1982 passed by VI Additional Sessions Judge, Deoria.

(IV) Discussions

17. The prosecution has proposed four witnesses of fact to prove it’s case. The informant Ishwar is P.W.-1, Bahadur is the eye witness of the incident as P.W.-2, another eye witness of the incident is P.W.-3 namely Rajvanshi @ Banshi; Dwarika Nath Tiwari, the injured witness of the incident was examined as P.W.-5. The formal witness in addition to the witness of the fact have also been produced by the prosecution for examination before the trial court: namely, Dr. M. Jama who had done the autopsy on the dead body of the victim of the incident “Ramashre Yadav” to prove post mortem report Ex. Ka-2 as P.W.-4. The doctor who had done the medico legal examination of injured in the incident “Dwarika Nath Tiwari” is Dr. J.N. Thakur as P.W.-7. Anwarul Aziz, the Investigating

Officer of the Case Crime No.132 of 1979, under Sections 147, 148, 149, 302 and 307 of the Indian Penal Code, 1860 has been examined as P.W.-6.

18. P.W.-1, P.W.-2, P.W.-3 and P.W.-5 belong to nearby villages of the place of the incident situated near Deoria Railway Station who were alleged to be present at the spot of the incident in connection with their routine business or personal causes. They are rustic villagers. It is also pertinent to mention here that the examination of the aforesaid witnesses before the trial judge was started approximately four years after the date of the incident. None of them is a person of high profile or having good education rather they are uneducated common villagers grown in day to day life in milieu of villages, as it comes out from the statement they deposed before the trial judge in the course of their examination.

19. In the aforesaid context, before proceeding to appreciate their evidences, we think it proper to refer some parameters laid down by the Courts from time to time while dealing with the evidences deposed by witnesses in general. One of such judgment of the Apex Court is Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat [1] . The relevant para ‘5’ from the aforesaid judgment is reproduced hereunder:-

“(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.

(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him — Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.”

20. In the same context, we further think it relevant to refer the judgment of the Apex Court in Shivaji Sahab Rao Bobade Vs. State of Maharashtra [2] which deals the incident of murder in rural area where the witnesses to the case were rustic and so their behavioural pattern perceptive and un-perceptive habits have to be judged. The relevant extracts of the aforesaid judgment is reproduced hereunder:-

“8. Now to the facts. The scene of murder is rural, the witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villages. When scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. The learned Sessions Judge has at some length dissected the evidence, spun out contradictions and unnatural conduct, and tested with precision the time and sequence of the events connected with the crime, all on the touchstone of the medical evidence and the post-mortem certificate. Certainly, the court which has seen the witnesses depose, has a great advantage over the appellate Judge who reads the recorded evidence in cold print, and regard must be had to this advantage enjoyed by the trial Judge of observing the demeanour and delivery, of reading the straightforwardness and doubtful candour, rustic naivete and clever equivocation, manipulated conformity and ingenious unveracity of persons who swear to the facts before him. Nevertheless, where a Judge draws his conclusions not so much on the directness or dubiety of the witness while on oath but upon general probabilities and on expert evidence, the court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance. Nor can we make a fetish of the trial Judge’s psychic insight.”

Relations of witnesses with first informant, deceased and the accused persons

21. We think that it not to be out of relevance to state about the mutual relation of witnesses inter-se and also with the deceased as well as the accused persons, as coming out from the deposition before the trial judge.

22. The first informant Ishwar has stated in his cross examination made on behalf of accused-appellant Brijraj and accused Prahlad (of Village Moora Dih) that he had two brothers namely Ram Ji and Chandrika. The deceased in the incident in question namely “Ramashre Yadav” was son of aforesaid brother Chandrika, as such, it is admitted that P.W.-1 Ishwar is in blood relation with the deceased being his real uncle. In the same breath, he further stated about the witness P.W.-2 “Bahadur” that his sister is married with the son of P.W.-2 “Bahadur”, which means P.W.-2 “Bahadur” is in relation with P.W.-1 “Ishwar” as father-in-law of his sister. Further, he had denied any relation with P.W.-3 Rajvanshi @ Banshi who has been examined by the prosecution as eye witness of the incident in question. So far as the injured in the incident in question namely Dwarika Nath Tiwari who has been examined as P.W.-5, in his cross examination he has stated that he was a customer, who at the time of the incident was at the shop of “Ramashre Yadav”, drinking lassi, when bomb blast occurred and he too got injuries in the same occurrence. Though, P.W.-1 denied knowing P.W.-5 personally by name but asserted to have seen him severally to come at the shop of “Ramashre Yadav” to have tea or lassi.

23. About the work and profession of the witnesses – P.W.-1 “Ishwar” stated in the examination-in-chief that he and deceased “Ramashre Yadav” were running their shops of lassi and sharbat separately. The deceased Ramashre Yadav was running his shop at a wooden chowki (cot) towards the South of Octroi office whereas the shop of sharbat (sweet drink / squash) of P.W.-1 was on a trolley near the shop of Ramashre Yadav. In the cross examination, this witness has further clarified that his trolley of sharbat was towards the East side of the shop of deceased “Ramashre Yadav”. He then stated that he used to be with his trolley shop near the chowki of Ramashre Yadav in connection with his day to day business on the spot of incident. Further in the same continuation, he has stated that daily upto 11:00 P.M. in the night, his shop and shop of Ramashre Yadav were used to remain open. Nothing contrary could be extracted to the above said facts from the cross examination of or suggestion to the said prosecution witnesses.

24. P.W.-2 “Bahadur”, in his cross examination, has stated that he had received the amount of gratuity from the sugar mill in Deoria which he possessed with him on that day. From his statement it became evident that P.W.-2 was a retired workman of Deoria Sugar Mill. His age as disclosed was 70 years on the date when he was examined before the Court. He was doing agriculture work in his village Fatehpur Laheda, Police Station Rudrapur, District Deoria after his retirement (as comes out from para 2 of the examination-in-chief). His son, Nanhu was working in Deoria Sugar Mill and he used to come Deoria and stay with his son in his quarter. On the date of the incident, he was in Deoria with his son and came about 14 to 15 days back. In the cross examination, P.W.-2 further stated that his son Nanhu was on duty on the date of the incident from 10:00 A.M. to 06:00 P.M. This witness has stated about his sense of assessing time in clock with the siron blown from the factory.

25. Another witness (P.W.-3) Rajvanshi @ Banshi is also an agriculturist, his place of residence as disclosed by him, was in village Chakra Gosai under Police Station Mail, District Deoria. He at the relevant date and time of the incident came with his nephew Shiv Avtar who was studying in Village Barhaj, as his supplementary examination was scheduled to be held in an examination centre in District Deoria. As deposed, during his stay, he used to take his meals at a shop near the spot of the incident, situated infront of Deoria Railway Station alongwith his nephew and after dinner he usually take tea in the nearby tea shop. On the relevant date and time of the incident he was taking his tea as usual. In his cross examination, P.W-3 denied any relation with P.W.-1 “Ishwar” or with anyone else in the village Moora Dih. He even denied any relations in the village Bhimpur to which one of the co-accused Prahlad belongs. In the cross-examination P.W.-3 has admitted his relations with deceased “Ramashre Yadav” as his surety in bail in the criminal case against him. Further, he also admitted that whenever he used to come to Deoria in connection with his case in the Consolidation Court, he took food from the shop of Vindyachal situated infront of the Court. Vindyachal was the father-in-law of the deceased “Ramashre Yadav”. P.W.-3 further stated that not only he but his brother Baldeo was also surety for Ramashre Yadav in the aforesaid criminal case and for the reason of his relation with Vindyachal, he agreed to become surety in the case against Ramashre Yadav. He had denied doing pairvi in the criminal case against Ramashre Yadav on his behalf.

26. P.W.-5 “Dwarika Nath Tiwari” to whom the P.W.-1 deposed as a customer stated that whenever he used to be in Deoria, he came to the shop of Ramashre Yadav to have tea or lassi. He had stated that the deceased was not personally known to him. In examination-in-chief, he stated his profession being agriculture at his place of abode in Village Pandeypur, Police Station Laar, Distict Deoria. He was about 53 years old when produced before the Court. This witness, in his examination-inchief, had stated that he was not aware with the name of shopkeeper of lassi. Thus, this witness is quite unrelated with other witnesses of the case, the deceased and also the accused persons. He is a witness only because of the injuries he got on the spot of the incident during the occurrence of the incident at the stated time and date.

27. From the examination of witnesses of facts namely P.W.-1, P.W.-2, P.W.-3 and P.W.-5, it comes out not only from the examination-in-chief but also from the cross-examination that they are rustic villagers, uneducated, men of low profile, doing agricultural work. P.W.-2 “Bahadur”, a retired workman of the Deoria Sugar Mill is also an agriculturist and uneducated villager of District Deoria. Nothing has been extracted contrary to this status of the witness or suggested to them by the learned defence counsel. Such witnesses cannot be expected to possess the photographic memory and recall details of the incident mathematically.

Relation of witnesses with accused persons

28. P.W.-1, the first informant “Ishwar” has stated in the written complaint itself that his nephew “Ramashre” (deceased) was arraigned with the charge of murder of the brother of accused “Prahlad” (of village Moora Dih) namely Shyama and he was convicted. In appeal before the High Court, he was enlarged on bail continuing on the date of incident in question. This is why, the accused Prahlad and others were hatching enmity with his nephew and, therefore, they killed him.

29. The first informant as (P.W.-1) when produced in the witness box, had reiterated and asserted in the examination-in-chief that deceased “Ramashre” murdered Shyama “the brother of the accused Prahlad (of village Moora Dih)”. In the trial of aforesaid murder case he was convicted and sentenced but released on bail and continuing as such at the relevant time of incident. He has further stated that the accused persons, Prahlad (of village Moora Dih) and his other companions were inimical for this reason with deceased “Ramashre”. He further stated that Prahlad ( of village Bhimpur) and his brother Ram Oudh were residents of village Bhimpur, Sudama and Brijraj were their friends. In the cross-examination, this witness has further clarified that the criminal case in which Ramashre was arraigned as accused, he and his brothers Chandrika and Ram Ji were also made accused. In cross-examination, this witness has further stated that the deceased “Ramashre” had justificably murdered Shyama and was sentenced correctly, the pairvi of the Ramashre accused in the murder case of Shyama was being done by him (P.W.-1). The witness has further stated that the accused persons since much before the date of the incident were looking to kill him whenever he used to go to attend his fields in the nights. Before the incident, the accused tried to kill ‘Ramashre’ near Kuna Nala and a report was lodged in connection therewith against Prahlad (of village Moora Dih) and his father Bhirgun with one Hanuman. They also lodged a report against him.

30. On the complaint of accused Prahlad’s father, Bhirgun (of village Moora Dih), the P.W.-1, Mohan, Chandrika (father of the deceased Ramashre and brother of P.W.-1), Poojan, Ramdhan and Nagina were arraigned in a case in Court which was going on at the time of incident. This witness has admitted in the cross-examination that he and Bhirgun ( father of accused Prahlad of Village Moora Dih) were in bitter inimical relations for a long time. He has further asserted in the cross-examination that both the accused persons, Prahlad (of village Moora Dih) and Prahlad ( of Village Bhimpur) were hatching enmity against him.

31. On a careful perusal of the statement in chief and crossexamination, it is clear that P.W.-1, his brothers and deceased “Ramashre” on the one side and Bhirgun, his son Prahlad (of village Moora Dih) on the other side were indulged in various disputes with each other for long ago the date of incident. It has also came out from the cross-examination that Bhirgun as well as his son, the accused appellant “Prahlad” (of Village Moora Dih) were carrying a bitter inimical relations with Ramashre (the deceased) for the reason of his release on bail after conviction in appeal in the murder trial in case of murder of Shyama, the brother of the accused appellant “Prahlad” (of village Moora Dih). Thus, inimical relations of P.W.-1 as well as the deceased “Ramashre” with the accused appellant Prahlad (of Village Moora Dih) is established and proved.

32. Prahlad (of Village Bhimpur) was inimical with deceased “Ramashre” by reason of his friendship with Prahlad (of Village Moora Dih). So far as the accused persons Brijraj and Sudama are concerned, witness P.W.-1 has denied any personal acquaintance with them. However, in the cross-examination, P.W.-1 has stated that he came to know the accused Sudama and Brijraj because they used to come in his village Moora Dih. They were well known in the village, and therefore, he also knew about them. He further stated that they (Sudama and Brijraj) severely came in quarrel and disputes against him and that was also the reason to know them. This witness has also stated that all the accused persons were knowing the deceased “Ramashre” since before the incident.

33. P.W.-2 “Bahadur” in his cross-examination has deposed about him knowing the accused “Brijraj”. He stated that he did not go to the house of Brijraj nor he had even conversation with him. Deceased “Ramashre” had murdered the brother of the accused Prahlad (of village Moora Dih) for which he was subjected to trial and in connection with that he used to go to Court with Ramashre and, thus, he knew Brijraj also. This witness has further stated that though he did not know any one else in the village of Brijraj but knew some other people in the village of Sudama.

34. P.W.-3 Rajvanshi @ Banshi had also identified the accused persons five in number namely Prahlad (of Village Moora Dih), Prahlad and Ram Oudh of Village Bhimpur, Brijraj and Sudama. The outcome of the statement in the examination-in-chief and cross-examination presents an uncontradicted and consistent version as to the relation of witness P.W.-2 “Bahadur” and P.W.-3 “Rajvanshi” not being inimical with the accused named in the complaint. They are villagers of the nearby villages of the place of incident in District Deoria and stated that for the reason of robustic character and fame of accused Brijraj and Sudama, they came to know about them before the incident.

Appreciation of evidence of P.W.-1 and P.W.-2 being related witnesses.

35. P.W.-1 being real uncle of the deceased “Ramashre” and P.W.-2 also being a near relative of the family, their evidence is required to be carefully scrutinized. It is the settled legal preposition that the evidence of closely related witnesses is required to be carefully scrutinized and appreciated before any conclusion is made to rest upon to convict the accused in a given case. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can and certainly be relied upon.

36. No general assumption can be drawn that the related witnesses must also be an interested witnesses. A relative witness is a natural witness, a close relative like P.W.-1, the real uncle of the deceased “Ramashre” in the present case and Bahadur, a near relative of the family, cannot be disregarded as interested witnesses. The term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some anonymous or for some other reason. In the light of this principle we have to consider the argument of the learned counsel for the appellants that all eye witnesses being related to deceased are interested witnesses and their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with said parameters, it does not stand to the said test and the case set forth by the prosecution gets corroded and principle of proof beyond reasonable doubts gets shattered.

37. In Vijendra Singh Vs. State of Uttar Pradesh with Mahendra Singh Vs. State of Uttar Pradesh [3] , the Apex Court has held in para 31 as under:-

“31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. [Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge

Bench has ruled that : (SCC pp. 683-84, para 13)

“[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”

It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.”

38. In the present case, the presence of the witnesses on the spot is proved and established by their evidence without any contradiction or inconsistency, therefore, the credibility of the witnesses cannot be thrashed out for their being relative only as witnesses interested in false implication, in seeing the accused persons behind the bars.

39. In Sucha Singh and Another Vs. State of Punjab [4] , it is held that relationship is not a factor to effect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible. Para 13 of the said judgment is quoted under:-

13 . We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

The ground that the witness being a close relative consequently being a partisan witness should not be relied upon, has no substance. This impression in mind of any person that relatives were not independent is not correct.

40. The evidence in the present case also show and prove bitter inimical relation of the witness P.W.-1 and his nephew “Ramashre” (deceased) with the accused Prahlad (of Village Moora Dih). In para 14 of the Sucha Singh and Another Vs. State of Punjab (Supra), Hon’ble the Apex Court has considered it as under:-

“14. In Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953

Cri LJ 1465] it has been laid down as under : (AIR p. 366, para 26)

“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

41. In the present case, the evidence as to the presence on the spot of the incident at the relevant time and date of the incident not only proved probable and natural but is found to be free from contradictions, exaggeration or embellishment. Some minor contradictions or inconsistency are immaterial, irrelevant details which are not in the capacity in anyway corrode the credibility of witness cannot be labelled as omission or contradictions. This settled legal principle has been reiterated in various decisions of the Apex Court. One of the witnesses to the occurrence as himself been injured in the incident is P.W.-5 “Dwarika Nath Tiwari”. This witness though had not seen the accused persons but with all certainty, he had proved the place of incident, the relevant date and time of the occurrence and the manner of commission of crime by throwing hand grenades on the deceased. His presence on the spot is proved and also corroborated with the evidence of other witnesses of fact namely P.W.-1, P.W.-2 and P.W.-3. His testimony cannot be discarded as his presence on the spot cannot be doubted particularly in view of the fact that immediately after lodging of the first information report, the injured witness (P.W.-5) had been medically examined without any loss of time on the same date. The injured witness had been put through gruelling cross-examination but nothing could be elicited to discredible his testimony. It is held by the Apex Court in Brahm Swaroop and Another Vs. State of Uttar Pradesh (Supra) [5] as under :-

“It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety. “Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.” Difference in some minor details, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and shifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basis version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses.”

42. In this regard, para 22 of the judgment of the Apex Court in the case of Shyam Babu Vs. State of U.P. [6] , is reproduced hereunder:-

This Court has repeatedly held that the version of an eyewitness cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relative or friend of the deceased. It is also stated that where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc. These principles have been reiterated in Mano Dutt and Another vs. State of Uttar Pradesh, (2012) 4 SCC 79 and Dayal Singh and Others vs. State of Uttaranchal, 2012 (7) Scale 165.”

Motive

43. The motive for the murder as stated in the first information report and proved by the evidence of P.W.-1, is an undisputed fact. Brother of one of the assailants “Prahlad” (of Village Moora Dih) namely Shyama was murdered much before the incident in question. The assailants were under the belief that the said Shyama was murdered by the deceased “Ramashre” and the trial court had found Ramashre guilty of the murder. It seems that when the assailants knew that despite the conviction and sentence passed by the trial court, he was out of jail on release on bail, naturally the instinct of revenge might have galvanised for an opportune time to avenge the murder of Shyama. Thus, the motive put forward by the prosecution seems to be a very strong circumstance to buttress the prosecution version. This circumstance is relevant and admissible in evidence under Section 8 of the Indian Evidence Act, 1872.

About the presence of injured witness (P.W.-5) on the spot of incident at relevant date and time viz. 12.04.1979 between 08:30 P.M. to 08:45 P.M. in the night.

44. First of all we gone through the statement of P.W.-5, the injured witness of the incident namely Dwarika Nath Tiwari. This 50 years old agriculturist of Village Pandeypur, District Deoria stated in his examination-in-chief recorded on 30.06.1983, after more than four years from the date of incident, that at about 08:30 P.M. to 08:45 P.M. he was sitting on a bench of the shop of lassi facing towards South in front of the railway station near Octroi Outpost and was drinking lassi. The place was illuminated by electric lights. He heard suddenly simultaneous blasts of 23 bombs which injured his right arm also. The lassi shop owner wounded from the bomb blasts instantly died. He did not know the name of the deceased shop owner. This injured witness has further stated that he was brought to the hospital for treatment on a ricksaw. The ricksaw puller brought him first to the Police Station Kotwali, District Deoria and from there he was sent to the hospital for medical examination. In the crossexamination P.W.-5 stated that after the occurrence, he stayed on the spot for about half an hour. He further stated that he was interrogated by the police in the hospital at about 09:45 P.M. on the next day.

45. In this connection, we may also refer to the statement of P.W.-6, the Sub Inspector (Investigating Officer) who in his cross examination has stated that the injured came to the police station on a ricksaw. His statement was not recorded by him in the police station because he was sent to the hospital for medical examination. This witness (P.W.-6) further stated that he recorded the statement of injured “Dwarika Nath Tiwari” on 13.04.1979 at about 16:00 P.M. in the hospital while he was admitted for treatment. Further, to test the veracity of the statement of the injured witness as to his presence on spot at the time of incident and sustaining injuries in the same occurrence, we may go through the statement of P.W.7 “Dr. J.N. Thankur” of Deoria Hospital. According to his testimony, on 12.04.1979 , he was present in the hospital when at about 09:50 P.M., Dwarika Nath Tiwari was examined by him medically, who was brought by sepoy “Subhash Chandra” of Police Station Kotwali. P.W.-7 had proved the medical examination report of the injured witness as Ex.

Ka.17, reproduced hereunder:-

“Examining Sri Dwarika Nath Tiwari 45 years old S/o Lal Bahadur Tiwari R/o Pandey pur Police Station Laar Deoria on 12/4/79 at 9:50 p.m. …….. C.P. No.141 Subhash Chandra Police Station Laar, Deoria

A/I – Black and lap check.

Injury- 1 Lacerated wound 4×4 bone deep right elbow int… kept into. Adv. Xray. blacking tattooing around into wound.

2 Swelling simple burn on his right side chest”

46. The expert witness P.W.-7 has further stated that these injuries might have been caused to the injured in between 08:30 P.M. to 09:00 P.M. in the night of 12.04.1979. We did not find any contradiction or inconsistency in the statement of the injured witness i.e. P.W.-5 “Dwarika Nath Tiwari” with that of the statement of P.W.-6 (the Investigating Officer) and P.W.-7 (the Doctor), who did the medico legal examination as to the injuries of P.W.-5, the injured witness. As such, the presence of P.W.-5 at the spot of the incident in question at the relevant time (between 08:30 P.M. to 08:45 P.M.) in the night of 12.04.1979 corroborated from other prosecution evidence. His presence is further corroborated from the statements of other witnesses P.W.-1, P.W.-2 and P.W.-3.

47. P.W.-1 “the first informant” in his written information also submitted to the police and stated about the injuries were sustained by one customer on the shop of deceased “Ramashre” from the bomb blast. In the statement of P.W.-1 (the first informant) therein is:- “A man who sustained injuries in the incident in question had also seen the incident whose name he did not know”. P.W.-1 has further stated in the cross-examination that in the first information report the name of injured witness could not be disclosed because he was lying unconscious on the spot after the incident and conversation with him as such was not possible. Further in para 26, P.W.-1 stated that the customer who was drinking lassi on the shop of deceased “Ramashre”, was standing at one step away from the wooden cot of the shop in the North direction. He further stated that the name of customer was not known to him till that date,. He, however, had seen the said customer even prior to the occurrence of incident as he severally and occasionally used to come and drink lassi at the shop of deceased Ramashre.

In similar circumstance, the Apex Court has held that when a witness received injuries in the course of the incident, his presence cannot be doubted at the time and place of the occurrence ( Maqsoodan and others Vs. State of Uttar Pradesh) [7] .

In para 28 in the case of Brahm Swaroop Vs. State of U.P. (Supra), the Apex Court has held as under:-

“Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness.” (Vide State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2021] , Krishan v. State of Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] , Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3 SCC (Cri) 472] , Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC (Cri) 107] , Vishnu v. State of Rajasthan [(2009) 10 SCC 477 : (2010) 1 SCC ( Cri) 302] , Annareddy Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630 : AIR 2009 SC 2661] and Balraje v. State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC ( Cri) 211] .)”

48. We would like to remind ourselves at the cost of repetition that the witnesses are rustic villager, uneducated, struggling for earning of their day to day livelihood. This is quite natural in the quick witted bombing on the spot of incident by the accused persons that the witnesses might have been over taken by the events. None of them could anticipate occurrence which bore element of surprise. Their mental faculties may not be tuned to absorb the details. Moreover, the witness sitting or standing on the spot is not so material to over turn the prosecution, the presence of injured witness from his injuries is established in itself, against which no adverse material could be extracted from cross examination. Further, P.W.-2 “Bahadur” has also stated in his examination-in-chief about the presence of one man near the deceased who had sustained blast injuries and fell on the earth. Further, in his cross-examination this witness asserted that the said customer was drinking lassi standing near the deceased “Ramashre” in the North-Eastern corner of the wooden cot of the shop of the deceased and no one else except that customer was present at that time at the shop of the deceased “Ramashre”. This witness also has not stated anything contrary or inconsistent to the fact of presence of customer (P.W.-5) at the time of occurrence.

49. P.W.-3 “Rajvanshi @ Banshi” has also stated in the examination-inchief that at the time of occurrence, one customer after drinking lassi was standing near the shop who sustained blast injures from the bomb in the incident. Nothing contrary or inconsistent could be extracted by the learned defence counsel in the cross-examination with regard to the presence of customer who got injuries and subsequently identified during investigation as Dwarika Nath Tiwari and examined in the trial as P.W.-5.

50. Despite lengthy and grilling cross-examination, the defence could not extract any material contradiction or inconsistency with regard to the proved facts of presence of injured witness, a customer on the shop of lassi of deceased “Ramashre” at the relevant time and date of incident. The arguments of the learned counsel with regard to the falsity and discrepancy in statement of P.W.-1 whether the said customer, the injured witness was sitting on the bench or standing near the wooden cot of lassi shop when he was drinking lassi at the time of occurrence is of no avail.

Evidence as to the presence of witnesses P.W.-1, P.W.-2 and P.W.-3 at the spot.

51. P.W.-1, the first informant of the case, P.W.-2 his relative “Bahadur” and P.W.-3 “Rajvanshi @ Banshi”, all have stated on oath about the cause and occasion of their presence at the spot at the relevant date and time of incident when the accused persons threw bombs over the victim of the incident “Ramashre” and killed him. For the purpose of their evidence in this regard, we have to see flaws if any, of improbability coming out from their statement; contradiction or inconsistency between their statements as to the presence on the spot, before placing our reliance on or discredit to their evidence.

52. Starting our discussions on the aforesaid aspects of the veracity of witness’s statement, we perused the written complaint dated 12.04.1979 submitted by the first informant “Ishwar” who had deposed about his profession as well as the profession of his nephew “Ramashre” of selling sharbat and lassi by installing a pavement shop on the footpath near the Railway Station Deoria in front of Octroi Outpost. In his statement, P.W.1 has stated that he and Ramashre both were running separate shops of lassi and sharbat. The shop of Ramashre for selling lassi was on a wooden cot whereas the shop of the informant was on trolley for selling sharbat. This witness in the cross-examination had denied the suggestion that he used to sell sharbat wandering here and there on the road but asserted that he always used to sell sharbat on the same spot standing near his trolley. He further asserted that about 15 to 16 days from the date of incident, he was doing this business at the spot of incident and Ramashre was also doing business of preparing and selling lassi there. He further stated that the Investigating Officer had seen the trolley of the first informant on the spot of the incident and wooded chowki of Ramashre where he used to sit for selling lassi. This witness has further stated that in connection with their (P.W.-1 and the deceased) business of selling sharbat and lassi, they used to stay on the spot uptill 11:00 P.M. in night. The statement of P.W.-1 as to his usual presence and the presence of deceased “Ramashre” in connection with their day to day business on the spot of incident finds force from the statement of the Investigating Officer (P.W.-6), when he deposed in the cross-examination that the spot inspection was done by him after the incident on the pointing out of the first informant (P.W.-1).

53. P.W.-6 in his examination-in-chief stated that on 13.04.1979 at about 00:5 A.M. i.e. in the same night of the incident (12.04.1979), he inspected the spot of incident on the pointing out and identification of P.W.-1, prepared the site map (Ex. Ka-11), shown the spot of deceased “Ramashre” and cycle no.9270 with other utensils for preparation of sharbat and lassi and raw materials were seized from the spot by him. The shop of the first informant “Ishwar” is shown with letter “B” and shop of deceased “Ramashre” is shown with letter “A” in the proved document Ex. Ka-11. In this way, from the statement of P.W.-1, and that of the Investigating Officer (P.W.-6) and the site map, the evidence of presence of P.W.-1 on the spot in connection in his shop near the shop of deceased “Ramashre” at the time of incident is believable and probable. Nothing can be elicited and extracted against the said evidence of presence of P.W.-1 on spot at the relevant time and date of the incident.

54. Witness P.W.-3 “Rajvanshi @ Banshi” to whom the learned counsel for the appellants termed as a chance witness or the sponsored witness, has stated in examination-in-chief that he was present at the relevant date and time of the incident on the spot of incident as he and his nephew went to a restaurant situated nearby to take dinner and after dining he stayed and sat on the tea stall to have tea. He was drinking tea when the incident occurred. Learned counsel for the defence could not extract any improbability or falsity in his statement as to his presence in District Deoria in connection with the supplementary examination of his nephew. The presence of this witness at the spot of the incident at the relevant date and time cannot be disbelieved. Moreover, his name in the written complaint (Ex. Ka-1) had been given as witness of the incident. For the above, his presence at the spot of the incident and coincidently seeing the incident in question cannot be doubted.

Spot of incident and source of Light

55. The time of the incident is night at about 08:30 P.M. to 08:45 P.M. A dispute was raised that the witnesses could not be expected to have seen the incident and the accused persons in the darkness of the night. To force this argument, learned counsel for the appellants drew the attention towards the site map (Ex. Ka-11) prepared by the Investigating Officer wherein he has not shown any source of light. He submits that even the witnesses have not stated that the night of the incident was a full moon night. P.W.-6, the Investigating Officer has stated that on the pointing out of first informant (P.W.-1), eye witness Bahadur (P.W.-2) and Rajvanshi @ Banshi (P.W.-3), he inspected the spot of incident and prepared the site map (Ex. Ka-11). In his cross-examination, this witness assertingly replied that P.W.-1 had told him that at the time of incident, there was illumination of electricity light, however, he had not been told that light was coming from the electric pole. Lastly, this witness has denied the suggestion of the learned counsel for the defence that there was no light on the spot of the incident. In this connection, the written complaint (Ex. Ka-1) is also important to be looked into where the first informant (P.W.1) had narrated the spot of incident being surrounded from all the four directions by shops which were illuminated from electricity lights.

56. P.W.-1 who is a rustic villager in his examination-in-chief has stated that there was a road running towards East to West lying towards South of the gate of Railway Station. The South side of the road was abutted with footpath and in it’s South there was a drain, 10-15 shops are located towards South of the aforesaid drain spreading over East to West directions, there was an electricity pole towards the South of the gate of the Railway Station fitted with the electricity bulb. As such, this witness had firmly and confidently stated that the area in vicinity of the spot of incident was lit up by the electricity bulb and light in the shops as well as the electricity pole installed in the South of the gate of Railway Station.

57. The statement of P.W.-6 (Investigating Officer) and P.W.-1 (first informant) is, therefore, not materially contradicting each other rather there is consistency in evidence to the fact of the spot of the incident being surrounded from all the four directions from the shops in the vicinity. As this position of the spot of incident shown in the site map prepared by P.W.-6 finds corroboration from the statement of P.W.-1 and P.W.-6, and there is no contradiction about the position on the spot of the incident being surrounded with nearby shops and situated in South of the Railway Station abutting to the road running towards East to West and footpath, therefore, argument as to non mentioning of the electricity pole or any source of light in the site map would be only an inadvertent omission. The statement of the prosecution witnesses can not be discarded with regard to the source of light available on the spot of the incident at relevant time and date. This omission on the part of Investigating Officer could not be taken to falsify his statement as to the source of light.

58. P.W.-2 (Bahadur) had also stated in his examination-in-chief that from the spot of the incident where Ramashre was killed at the distance of approximately 5 to 6 steps towards East, Ishwar (P.W.-1) was making fruit juice and he was present there with him. There was enough illumination from electricity lights on the spot when he saw the accused persons pouncing from the western gate of the Railway Station.

59. P.W.-3 “Rajvanshi @ Banshi” has also stated to have seen and identifying the accused persons in the light coming from the electric pole. This witness in cross examination has stated that he was facing towards North while sitting on the shop when he was drinking tea. We think it relevant to go back to the statement of P.W.-1 where he described the topography of Deoria Railway Station that in front of the gate of the Railway Station towards South there was a road running towards East to West, at the Southern side of which, the footpath and the shops including the shops of P.W.-1 and his nephew were located.

60. P.W.-1 has stated that at the gate of the Railway Station, an electric pole was installed from which electric light illuminated the area. The site map (Ex. Ka-11) also helps to appreciate his evidence wherein just in front of the Eastern gate of the Railway Station Deoria towards South on the road lying East to West, an electricity pole is shown. This is important that existence of this electricity pole has not been denied by the P.W.-6 in his cross-examination. Even this witness in his cross-examination has stated that in the night of the incident at about 01:30 A.M., he recorded the statement of witness P.W.-2 in the electricity light. P.W.-6 has further stated in cross-examination that witness P.W.-1 “Ishwar” told about the electricity light.

61. In our view, there is no discrepancy in the statement of prosecution witnesses as to the spot of the incident and source of light. The defence has remained unsuccessful in extracting from the cross-examination any evidence to establish that the area was not electrified or there was no possibility of electricity light coming either from the surrounding shops or from the pole installed at the Southern side of the gate of the Railway Station Deoria shown in the site map.

62. This would also be relevant to say that P.W.-1 present on his shop, in between the other shops, had seen the accused person in the illumination of electric lights coming from the shops. P.W.-2 likewise had also seen the accused persons in such light whereas P.W.-3 (Rajvanshi @ Banshi) who was sitting facing towards North naturally in all probability is expected to see the accused persons coming from the gate of the Railway Station towards the spot of the incident. As such, the P.W.-3 ( Rajvanshi @ Banshi) looking in North direction towards the railway station and the accused persons pouncing from the railway station towards the spot of the incident situated in front of the railway station towards South were factually in front of each other.

63. Even P.W.-5, the injured witness has stated that the electricity pole nearest to the spot of incident was fitted with electric bulb from which light was coming, however, he expressed his inability to recollect the direction of electrical pole for the reason of having got injured in the incident badly. He, however, absolutely denied the suggestion put forth by the defence counsel that there was no existence of light.

64. We find no falsity, improbability of the statement with regard to the spot of incident and availability of light at the spot of incident on the relevant date and time and also no contradiction or inconsistency in the statement of prosecution witnesses with this regard. Their evidence of watching the incident in the illumination undoubtedly is believable and acceptable.

Identification of the accused persons.

65. As we have discussed earlier the acquaintance of the witness with the accused persons and found that P.W.-1, the informant of the case by reason of his enmity, P.W.-2 (Bahadur), the relative of P.W.-1 knew the accused persons before the incident in question. Prosecution witness P.W.3 (Rajvanshi @ Banshi) is neither related with P.W.-1 and P.W.-2 nor with the deceased. In cross-examination, he has stated about acquaintance with deceased “Ramashre” whose father-in-law (Vindyachal) was owner of the food shop situated in front of the Court at District Deoria where he used to take meals on his arrival to Deoria in connection with pairvi of his case pending in the consolidation court. He became surety in the bail of Ramashre in the murder case of ‘Shyama’, the brother of accused Prahlad ( of Village Moora Dih). P.W.-3 and his brother Baldeo both were sureties for the deceased “Ramashre” in that case. Since father-in-law of deceased namely Vindyachal was known to him since long ago, therefore, he did not hesitate to give surety for Ramashre on his request. This witness has further stated that he knew the parentage of accused Prahlad (of Village Moora Dih) only and no other accused persons. On a suggestion by the defence to him giving false statement by reason of him being relative of the deceased or the P.W.-1, P.W.-3 absolutely denied the relation and that he had deposed falsely. His statement in the examination-in-chief to the effect that he had identified all the five accused persons whose names were Prahlad and Ram Oudh of Village Moora Dih, Prahlad of Village Bhimpur, Brijraj and Sudama does not built confidence, as he without any ambiguity tries to establish their identity by their name and village but in cross-examination, the learned counsel for the defence has been successful in establishing that he does not have any relation in Village Bhimpur. In para 4 of the cross-examination, P.W.-3 further stated that he knew the accused persons Prahlad and Ram Oudh of Village Bhimpur, Brijraj and Sudama during the proceeding of the case going on in connection with the murder by Ramashre (the deceased in the incident) and this is why he told about them to the Investigating Officer.

66. The injured witness (P.W.-5) had not identified the accused persons but very explicitly replied in the cross-examination that he only heard the blast of the bombs and saw that the deceased instantly died of the blast injuries. He stated the reason why he could not see the assailants as while drinking lassi, he sat on the bench of the shop facing South and accused came from the side of the gate of the Railway Station behind him in the North. Therefore, evidence of P.W.-5 is of no avail as to the identification of accused persons but his evidence amply proves the spot of incident, the relevant date and time of the incident, the killing of the deceased “Ramashre” in the incident and the mode of his killing by throwing bombs on him.

67. The evidence of P.W.-3 though seems shaky only with regard to the identification of all the accused except Prahlad (of Village Moora Dih) to whom he knew earlier, but rest of his evidence as to the mode and manner of killing deceased “Ramashre” in the incident by throwing hand grenade on him at the spot of incident at the relevant date and time of the incident is acceptable and can not be discarded for the reason that the english legal maxim “Falsus in uno, falsus in omnibus” is not applicable in India.

68. The Apex Court in Sucha Singh and Another Vs. State of Punjab (Supra) has held in para 18 as under:-

“To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). Stress was laid by the accused- appellants on the nonacceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of “falsus in uno falsus in omnibus” (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liar. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ‘a mandatory rule of evidence’. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab ( AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead- stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390) , normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186). Accusations have been clearly established against accused-appellants in the case at hand. The Courts below have categorically indicated the distinguishing features in evidence so far as acquitted and convicted accused are concerned.”

In view of the above noted legal position, the evidence of P.W.-3 “Rajvanshi @ Banshi” in the case before us cannot be discarded as a whole. If his evidence as to the identification of rest of the accused persons other than the accused Prahlad (of Village Moora Dih) is excluded, even then the portion of his statement as to the number of accused persons appearing on spot of incident with accused Prahlad (of Village Moora Dih) at relevant date and time of incident and throwing bombs on the deceased “Ramashre”, killing him thereby instantly on the spot and, thereafter, fleeing from the spot is trustworthy and believable being free of contradictions, inconsistencies or embellishments.

69. The evidence on record does not suggest that the accused appeared on the spot of incident with muffled faces. P.W.-1, the first informant is the resident of the same Village Moora Dih and accused Prahlad to whom the role of exhortation had been assigned also belongs to the same village. By his evidence, P.W.-1 had proved that accused Prahlad (of Village Moora Dih) had enmity with his family. Occasionally Brijraj and Sudama both used to join adversely in disputes and quarrels between his family and the family of accused Prahlad (of Village Moora Dih), therefore, they were also known to him very well since long before the occurrence in question. He has also stated about Prahlad (of Village Bhimpur) being companion of the accused Prahlad (of Village Moora Dih) aiding and assisting him on various occasion and that they were also known to him. P.W.-2 being near relative of the P.W.-1 was also closely knowing all the accused persons, therefore, identification of the accused persons was not improbable and impossible for them when they appeared on the spot of the incident as assailants. The accused persons, as the evidences on record prove, were very much known to the P.W.-1 and P.W.-2, and were not with muffled face at the spot of incident. They were easily seen and identifiable on the spot of the incident illuminated from electric light coming from the shop and from electricity pole installed in the nearby vicinity in front of the Western gate of the Railway Station towards it’s South. P.W.-3 had also seen the four companions of the accused Prahlad ( of Village Moora Dih) on the spot as participants and, thus, became known of their faces. His presence on spot is proved by the evidence of the prosecution and finds corroboration from the fact that his name found place in the written information (Ex. Ka-1) proved to have been promptly lodged after the incidence in question. In the cross-examination, P.W.-3 unmistakably recollect his memory in identifying the accused persons in the trial court when he was in the witness box. In the circumstance of the present case, the identification parade was not required.

The manner and Mode of Commission of offence in question

70. The inquest was conducted on 12.04.1979 after getting information of the incident commencing from 21:30 P.M. continued upto 23:50 P.M. which shows that the incident of killing of the deceased “Ramashre” was actuated causing blast injuries of bomb. The body was lying in a drainage having head towards East and legs towards West, when it was drawn out of drainage, it was found that the entire face above the chin was blasted over, the brain also came out, the skull found falling in the drain. In this connection, we think it relevant to refer the post mortem report proved by doctor (medical witness) P.W.-4 (Dr. M. Jama) proved as Ex. Ka-12 is entered.

“Ante mortem injuries:-

1. Blast injury over whole of the face from chin below upto upper part of the head and on sides from one ear to other ear ……….. both nostril both eyes extensively lacerated whole of face extending lacerated under lying facial bone both jaw bone and …….. multiple places into pieces lying structure eximoted lacerated ……… presently signed bleeding talioring over injuries proceeds blood clots present. Brain …… Six metallic frugs body preserved for underlying injured tissues.

2. Abrasion ½ x ¼ on the right arm upper ……… side.

3. Abrasion 2 x ½ on the right arm upper part internal side.

4. Abrasion 1 ½ x ½ on the right arm just above wrist . .. side 5 . Multiple Abrasion over an arm of 3×2 on the part of chest in

……..

6. Abrasion 1 ½ x ½ on the left upper shoulder.

7. Abrasion ¾ x ½ on the left side chest. 2 ½ above left nipple.

8. Abrasion 1x ½ on the pst…… side lower 1/3rd of the left arm.

9. Abrasion 1 ½ x ½ on the left fore arm middle finger.

10. Abrasion 1 x ½ on the …….. of right thigh.

11. Abrasion 2 x ½ on the lower 1/3 of the right thigh.

12. Abrasion 1 x ½ on the middle side of the right knee.

13. Abrasion 1 ½ x ½ on the … side right leg lower 1/3rd.

14. Abrasion 1 ¼ x ½ on the middle of left thigh internal sides.

15. Abrasion 1 ½ x ½ on the just above ………

16. Abrasion multiple over an over of 4 x 2 on the left leg upper 1/3 rd.”

71. The injuries reported on the person of the deceased as ante mortem injuries are being reproduced hereunder for easy reference and to appreciate the manner of killing the deceased “Ramashre”. Dr. M. Jama ( P.W.-4) who had done autopsy on the dead body stated that he had conducted the autopsy on 13.04.1979 at about 02:45 P.M. The deceased was approximately 30 years in age and his death had occurred approximately one day ago. Describing the ante mortem injures, he stated that the entire face of the deceased from chin to forehead, from right ear to left ear, both the eyes and nose were badly and extremely cut and ruptured. Both the jaws were broken, hairs on the head were burnt and wounds were surrounded with blackening and tattooing, blood was clotted, brain was flown out from the skull and six metallic scraps were found inside the wounds. He stated that the injuries reported by him in the post mortem report as ante mortem injuries sustained by the deceased were sufficient in the ordinary course of nature to cause the death and all of them were caused by bombs. He assessed the proximate time of death on 12.04.1979 at about 08:45 P.M. to 09:00 P.M. and also stated firmly that the deceased might have died instantly of the wounds sustained by him as above.

72. In cross-examination, this witness (P.W.-4) has firmly denied that the injury no.1 could occur from rifle, however, the defence has carved out the possibility of the blast injury having been caused from only one bomb also. This would be relevant that the defence has not succeeded in extracting from the evidence of P.W.-4, which is an expert opinion to be read in according with the provision of Section 45 of the Indian Evidence Act, 1872, that the blast injury could not be caused by more than one bombs.

73. In the aforesaid context emerging out from the inquest report and the post mortem report as well as the evidence of P.W.-4 (Dr. M. Jama), it would be necessary to look into the evidence of eye witnesses particularly P.W.-1, P.W.-2 and P.W.-3. So far as the injured witness P.W.-4 is concerned, his evidence is material with regard to the date, time and place of the incident as he has successfully and sufficiently proved his presence over the spot of the incident, the deceased was attacked by the assailants throwing hand grenade (bombs) on him, wherein he himself sustained blast injuries which was duly examined and his injury report has been proved by doctor who examined him medically as P.W.-7 (Dr. J.N. Thakur). As such the injured witness who stands on a high pedestal of trust worthiness and credibility being injured in the incident and eye witness has proved the spot of the incident being the shop of deceased “Ramashre”. P.W.-4 has also reliably proved as to the incident of bombing on the lassi shop owner “Ramashre” resulting in death. Likewise, he has successfully proved the time of incident at about 08:30 P.M. to 08:45 P.M. in the night of 12:04.1979.

74. P.W.-1 in his written complaint very specifically stated that at about 08:30 P.M. to 08:45 P.M. in the night of 12.04.1979 when he alongwith Bahadur (P.W.-2) was at his shop near the shop of Ramashre, he saw the accused persons Ram Oudh (of village Bhimpur) and Prahlad (of Village Moora Dih), Sudama and Brijraj coming towards them. Prahlad (of Village Moora Dih) shouted exhortingly pointing the deceased “Ramashre” to kill him (मारो साले को ) and saw Sudama, Prahlad (of

Village Bhimpur) and Brijraj throwing hand grenades (Bombs) on Ramashre. On the alarm of P.W.-1 and P.W.-2, P.W.-3 (Rajvanshi @ Banshi), Hari Yadav, Ram Ji and several other people rushed towards them to chase the assailants who fled towards Mal Godam through Railway Station Deoria. The Ramashre died of blast injury instantly on the spot.

75. In his examination-in-chief, P.W.-1 without any deviation, exaggeration, embellishment or improvement has stated the same mode and manner of assailants of attacking with bombs on the deceased “Ramashre” at the relevant date and time of incident at his shop of lassi ( the place of incident). In cross-examination, this witness stated that at the time of the incident, deceased “Ramashre” was preparing lassi at his shop, he stated that Sudama, Prahlad (of Village Bhimpur and Brijraj) thrown the bomb simultaneously on Ramashre, the assailants were chased but they had succeeded in fleeing away from the spot as Prahlad (of Village Moora Dih) and Ram Oudh thrown bombs over the chasing crowd, the people chasing the assailants feared of the bombs, stopped there. This witness has further stated in his cross-examination that he sighted the assailants only on the exhortation made by the Prahlad (of Village Moora Dih) and seen the assailants throwing bombs over the deceased “Ramashre” soon the exhortation. The accused who were throwing bombs on Ramashre were at a distance of 4 to 5 steps from the wooden cot of the lassi shop of Ramashre.

76. The first bomb was blasted on the head of Ramashre, second also blasted at the same place and rest of the bombs which were thrown simultaneously also blasted on the head of the deceased “Ramashre” when the bombs were thrown on him, the deceased “Ramashre” was in sitting position on his wooden cot of shop facing towards North. (This would be pertinent to refer that accused came towards Ramashre from the side of station which is at the South of the spot of incident).

77. In his cross-examination, this witness has further replied the query of the defence counsel that he saw the bombs just when the assailant took out them from their bags and they were coming at spot of incident, therefore, he tried to ran away from the spot but since Ramashre (the deceased) was sitting on his wooded cot, preparing lassi, he could not see the assailants and bombs in their hands and hence he could not run away from the spot.

78. This witness and the Investigating Officer (P.W.-7) both have deposed about the destruction of utensils and articles and other raw materials from the blast of bombs. P.W.-7 had prepared memo of seizure of the articles destroyed at the shop of deceased and proved in his examination, which also corroborate the oral statement of P.W.-1 that at the time of the bomb blast on Ramashre, he was sitting on his wooden cot shop preparing lassi. He further stated that the body was thrown on earth from the wooden cot towards it’s South. In the topography stated by P.W.7 and other witnesses of fact and the site map prepared by the Investigating Officer, it has been explicitly established that the wooden cot of the lassi shop of deceased “Ramashre” was lying abutted to the footpath of the road and, thereafter, a drainage was running in the EastWest direction. The inquest report also shows that the dead body was lying after the incident, in a drainage. (This also corroborates the statement of P.W.-1 with regard to the attack with bombing over the deceased “Ramashre” by the assailant while he was sitting on his wooden cot of the shop preparing lassi and after sustaining blast injuries, he died instantly).

79. P.W.-2 has also stated about exhortation by Prahlad (of Village Moora Dih), induced thereby the assailants Prahlad (of Village Bhimpur), Sudama and Brijraj thrown bombs on Ramashre over his head. In his cross-examination, this witness without any deviation and contradiction with the statement of P.W.-1 has stated that since he was sitting towards North of his shop facing West direction, therefore, he sighted the assailant coming towards the spot of incident but he could anticipate that they were coming to kill Ramashre. He stated that a total of three bombs were thrown over the deceased “Ramashre” from the distance of 5 to 6 steps away from the shop of Ramashre. Standing on the road, Ramashre having been injured from the bomb blast, thrown on earth from his shop lying East-West direction i.e. head towards the East and legs towards the West.

80. The learned counsel for the defence grilled the witness, which side of his body fell from the shop which this witness could not recollect. This witness has also stated about the fleeing assailants throwing bombs on the chasing people, therefore, they succeeded in fleeing away from the spot.

81. Rajvanshi @ Banshi as P.W.-3 has also without material deviation or any contradiction has stated the same scenario on exhortation of

Prahlad (of Village Moora Dih) throwing bomb by Ram Oudh and Prahlad (of Village Bhimpur), Sudama and Brijraj. This witness could not recollect in cross-examination that whether all the three bombs or how many bombs wounded the deceased “Ramashre” but with all certainty, this witness replied in cross-examination that the bomb was thrown on the person of the deceased “Ramashre” who died on the spot. He had also stated that Ram Oudh thrown bomb towards the chasing crowd, therefore, they feared of and stopped.

82. Learned counsel argued over the deviations in statement of witness with regard to the number of bombs thrown by the accused persons or bomb thrown by which all the accused caused the blast injury to the deceased “Ramashre”. He had not shown any contradiction or deviation in the statement of witness with regard to the mode and manner of assault which the prosecution witness proved without any material contradiction, embellishment or exaggeration. They have proved their presence on the spot at the relevant date and time of the incident which is a material fact for the purpose of proving the incident. Except to the identification of the accused persons, the injured witness has also proved the date, time and spot of the incident. The mode and manner of attack by throwing bomb on the deceased “Ramashre” and his instant death on the spot in the evidence of witness also found corroboration from the position of dead body, it’s condition as observed in the inquest proceeding and proved by the Investigating Officer (P.W.-6), as well as ante mortem injuries coupled with the deposition of the doctor who opined that the cause of death of the deceased “Ramashre” was blast injuries, sufficient to cause his death instantly.

83. In the present case, at least two out of four witnesses of the fact namely P.W.-1 and P.W.-2 have proved without any contradiction and without deviation, major or minor, the involvement of accused persons five in number i.e. (1) Prahlad (of Village Bhimpur), (2) Ram Oudh, S/o Ram Hit Yadav, R/o Village Bhimpur (3) Prahlad (of Village Moora Dih), (4) Sudama of Village Chali Chaur, Police Station Rudrapur and (5) Brijraj S/o Mahipat Yadav, R/o Village Khairaich, Police Station Rampur Karkhana, District Deoria in the attack, the date, time and place of the incident and the mode and manner of attack. The general principle of appreciating the evidence of eye witness in such a case is that where a large number of offenders are involved, it is necessary for the Court to seek corroboration, at least from two or more witnesses as a major or caution. Likewise, it is the quality and not the quantity of evidence to be the rule for conviction even where the number of eyewitness is less than two.

The prosecution has successfully proved the factum of killing of deceased “Ramashre” on 12.04.1979 at about 08:30 P.M. to 08:45 P.M. by the assailants by throwing bombs over him, thus, causing his death by blast injuries.

Argument as to medical evidence not supporting the ocular witness

84. In Shivaji Sahab Rao Bobade Vs. State of Maharashtra (Supra), it is held in para 18, which is reproduced hereunder:-

“18. Some attempt was made to show that the many injuries found on the person of the deceased and the manner of their infliction as deposed to by the eyewitnesses do not tally. Three is no doubt that substantially the wounds and the weapons and the manner of causation run congruous. Photographic picturisation of blows and kicks and hits and strikes in an attack cannot be expected from witnesses who are not fabricated and little turns on indifferent incompatibilities. Efforts to harmonise humdrum details betray police tutoring, not rugged truthfulness.”

85. The argument of the learned counsel as to the discrepancy in the statement of prosecution witness with regard to the number of bombs thrown over the deceased “Ramashre” and the expert opinion as to the blast injuries might have been caused by one bomb only. This argument is not tenable in view of the distorted condition of the dead body from the blast injuries which show that the brain had flown out of the skull and entire face had been cut and ruptured. One cannot with all certainty speculate about the number of bombs causing blast such injuries fatal to the deceased. In this regard, para ‘16’ of the judgment of Hon’ble the Apex Court in case of Thaman Kumar Vs. State (UT of Chandigarh) [8] is reproduced hereunder:-

“The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye-witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category t may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.”

86. Considering the above observations of the Apex Court, we are unable to accept the submission with regard to variation in the statement of the witnesses P.W.-1, P.W.-2 and P.W.-3 with regard to the number of bombs thrown over the deceased “Ramashre” and as to who threw the first or about the number of blast injuries, as material to demolish the case of the prosecution.

Common object

87. The reliable and trustworthy eye witnesses have proved the assailants having a motive for killing of the deceased “Ramashre” appearing on the spot together having hand grenades (bombs) knowing very well that if the same was thrown on the deceased, the blast injuries would be sufficient to cause his death in the ordinary course of nature. While the bombs were thrown pursuant to their common object by some of the assailants on the deceased “Ramashre”, they remain with each other and after assuring the death of the deceased from blast injuries, they fled from the spot together. This is sufficient to prove that their assembly was unlawful and the commission of the offence was in pursuant to their common object, which is sufficient to implicate them for the offence punishable under Section 149 of the Indian Penal Code, 1860.

88. We would like to refer to Section 35 of the Indian Penal Code, 1860.

“When such an act is criminal by reason of its being done with a criminal knowledge or intention.—Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.”

Section 141 of the Indian Penal Code, 1860 defines the unlawful assembly as below:-

141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is—

( First) — To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

( Second) — To resist the execution of any law, or of any legal process; or

( Third) — To commit any mischief or criminal trespass, or other offence; or

( Fourth) — By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

( Fifth) — By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”

89. We would also like to refer here Section 149 of the Indian Penal

Code, 1860:-

“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”

90. The evidence of prosecution in very explicit terms proved that the involvement of the accused persons five in number acting in concert with each other in the fatal attack with bombs and, thus, causing his death by blast injury. The act is criminal, done in concert and synergy each and every accused, throwing bombs by some of the them on the exhortation of one accused namely Prahlad (of Village Moora Dih) is implicit in itself that the object of their coming on the spot of incident with bomb was unlawful and throwing the bombs actuate their object on the exhortation made by the accused Prahlad (of Village Moora Dih) which caused the death of the victim. The common object of unlawful assembly thus fructuated in the crime of killing. The liability will be of those also who despite the knowledge of the object of the unlawful assembly remain throughout thereby as member of that assembly in the course common object of the unlawful assembly was actuated. For common object of killing the deceased “Ramashre” there was a motive, proved by the prosecution witness P.W.-1 and P.W.-2 which also united the accused persons for having common object of killing the the deceased “Ramashre”. After the commission of the crime, the accused persons fled from the spot together and when they were chased, one of the accused amongst them namely Ram Oudh thrown bomb over the chasing crowd to facilitate all in running away. The above acts were done together by the accused persons to achieve their common object.

91. In Mrinal Das and Others Vs. State of Tripura [9] , it is held that common object does not necessarily required proof of prior meetings of minds or pre consult.

92. In Anil Rai Vs. State of Bihar with Subhash Chand Rai and another Vs. State of Bihar with Awani Rai Vs. State of Bihar [10] , the Apex court held that sharing of common object and participation in the occurrence by each of the accused members of the unlawful assembly must be positively proved. Para 31 and 32 of the aforesaid judgment is quoted hereunder:-

“31. In Lalji v. State of U.P. [(1989) 1 SCC 437 : 1989 SCC ( Cri) 211] this Court held: (SCC pp. 441-42, para 9)

“9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. It other words, it created a constructive and vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.”

32 . In Shamshul Kanwar v. State of U.P. [(1995) 4 SCC 430 : 1995 SCC ( Cri) 753] it was held that to infer common object it is not necessary that each one of the accused should have participated in the attack when the evidence of the eyewitnesses clearly established that each one of those convicted accused was a member of the unlawful assembly whose common object was to commit murder. Where the prosecution fails to prove the existence of sharing of common object by all the members of the unlawful assembly, it is unsafe to convict all the accused persons merely on proof of their presence or some overt act which did not cause the death of the deceased. Both the courts below have not found on facts that all the accused persons including A-3 to A-7 shared the common object with A-1 and A-2 and A-2 and fired the shots. Neither any direct evidence nor any circumstances have been brought on record to hold or infer the existence of such a common object.

Learned counsel for the appellants have submitted that there is nothing in the evidence to show that the rest of the accused shared the common object with A-1 and A-2 to cause death of Lal Muni Rai and Chand Muni Rai. Even if the existence of a common object is held proved, it cannot be the common object for any offence other than committing the offence of rioting. I find substance in such a submission in the peculiar facts and circumstances of the case. The proved case of the prosecution is that when Lal Muni Rai along with others was coming back, he was intercepted by the accused persons who were armed with weapons and if the object of the unlawful assembly was to cause his death, there was no cause or occasion for them to only catch hold of the said deceased Lal Muni Rai and beat him. He was shot at by Avinash Chand Rai (A-1) only after he escaped from the clutches of the other accused persons. The other accused persons might not have in their contemplation that if the rioting, intended by them, failed any one of them would shoot at the victim.”

93. In the case of Dev Karan Vs. State of Haryana [11] , the Apex Court has held as under:-

“19. Thereafter, it has been opined that if charges framed against the appellant contain all the necessary ingredients to bring home to each of the members of the unlawful assembly, the offence, with aid of Section 149 IPC, and the prosecution proves the existence of an unlawful assembly with a common object, which is the offence, as also the membership of each appellant, nothing more is necessary. The effect of these observations is that Section 141 IPC only defines what is an unlawful assembly and in what manner the unlawful assembly conducts itself, and in what cases the common object would make the assembly unlawful is specified in the sections thereafter, inviting the consequences of the appropriate punishment in the context of Section 149 IPC.

20. In Kuldip Yadav v. State of Bihar [Kuldip Yadav v. State of Bihar, (2011) 5 SCC 324 : (2011) 2 SCC (Cri) 632] , it has been opined in para 36 that a clear finding regarding the nature of the common object of the assembly must be given and the evidence discussed must show not only the common object, but also that the object was unlawful, before recording a conviction under Section 149 IPC. What is required is that the essential ingredients of Section 141 IPC must be established.”

94. All the accused persons were with hand granades. Their conduct before, during and after the occurrence clearly brings out their common object. The assembly was patently unlawful. It is inconceivable that the accused with bombs would surround the victim without any criminal object in mind. Mere fact that only some of them used the bombs does not really rule out application of Section 149 of the Indian Penal Code, 1860. Learned counsel for the accused persons submitted that contrary to the evidence of P.W.s -1, 2 and 3 there was only one injury found by the doctor. P.W.s -1, 2 and 3 have stated about assaults and if five persons were really assaulting, the result would not have been only one injury. The definition of “assault” as given in Section 351 of the Indian Penal Code, 1860 makes the plea unacceptable. The trial Court had rightly and in proper legal perspective convicted the accused-respondents under Section 302 read with Section 149 of the Indian Penal Code, 1860.

The plea as to Ante Timed First Information Report

95. Section 154 (1) of the Criminal Procedure Code, 1973 is quoted hereunder:-

“Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.”

96. According to the language of the aforesaid provision, every information relating to the commission of offence whether given in writing or reduced into writing shall be signed by the persons giving it hence, the person who gives the information and who has to sign the information has to choose which particular information relating to the cognizable offence is to be given in the first information report. The first information report has to be reported almost immediately after the incident occurs as reasonably as practicably possible or after the knowledge of the incident is made known. Sometimes as convenient to the policemen, the first information report is not lodged immediately. Plea of first information report lodged ante time means that time and date has also been changed by the prosecution to suit their purpose, if there is a clear evidence that the first information report was ante timed then it looses it’s value.

97. In the instant appeals, the prosecution case before the trial judge against the accused-appellants was that on the late evening of 12.04.1979 at about 08:30 P.M. to 08:45 P.M., the deceased “Ramashre Yadav”, nephew of the first informant when was preparing lassi sitting on a wooden cot of his roadside patri shop, the accused persons came pouncing from the side of railway station towards him, one of them namely Prahlad ( of Village Moora Dih) exhorted the other co-accused persons shouting,

“this is the man Ramashre, Kill him”(मारो साले को). Rest of them, Sudama,

Prahlad (of village Bhimpur) and Brijraj threw hand grenades on Ramashre and caused his dead from blast injuries. The assailants were chased by the first informant, witnesses and others people of the vicinity gathered there but they fled away passing through the railway station towards Mal Godam throwing bombs towards the chasing crowd.

98. P.W.-1 and P.W.-2 both the witnesses have stated in their cross examination that they chased to some extent the assailants who were fleeing away from the spot of incident after commission of the offence passing through the railway station towards the Mal Godam but when the assailants again threw the bombs on them from the distance of eight to ten steps, they being feared stopped chasing and came back to the spot of incident.

99. Learned counsel for the defence has tried to carve out the fact of extra ordinary delay in lodging the first information report from the statement under cross-examination of the witness P.W.-1. To assess whether any delay which has unreasonably been caused in giving information of the incident to the police station and lodging the first information report, we have carefully gone through the cross-examination of first informant (P.W.-1). Before going through the statement in cross examination of P.W.-1, we think it proper and relevant to look back on the first information report Ex. Ka-3 wherein the date and time of the incident entered as 12.04.1979 at about 8:30 PM, the time of lodging the report is given 9:30 PM on the same day i.e. 12.04.1979, the distance of the spot of incident and it’s direction given in the first information report is Station Road one km. far away from the police station towards North. Other facts coming out from the written complaint are corroborated from the statements of the prosecution witnesses. This is an established principle of law that the first information report is not an encyclopedia and all numerous details of the incident could not be expected to have find place in it.

100. Learned counsel for the appellant drawing attention towards the distance of police station from the spot of the incident, only one km. connected with a pitch road, tried to impeach the first information report allegedly lodged with extra ordinary delay which is not explained. We have seen that P.W.-1, P.W.-2, P.W.-3 and even the injured witness P.W.-5 have sufficiently proved the incident of bombing over the deceased “Ramashre” by the assailants (accused persons) in which the deceased succumbed to blast injuries died instantly on the spot of incident.

101. On the query made by learned counsel for the defence as to how he availed paper for writing the complaint, he replied that he purchased the papers from a shop situated at a distance of hundred steps away from the Eastern gate of Police Station Kotwali on the road proceeding towards North, the said shop of stationary was about to shut off when he reached there. The report was written in the light coming from the electric pole installed on the road near Crossing. He did not recollect how much time was consumed in getting the report written and speculated that approximately less than one hour time might have been consumed in getting the report written.

102. In our view when the incident occurred at about 08:30 P.M. to 08:45 P.M., as proved by the witness and the first informant along with other witnesses and people of the locality chased first to apprehend the assailant then came to the spot of incident, the first informant stayed there approximately for 2 to 4 minutes and proceeded towards the Police Station Kotwali which situated at a distance of 1 to 1.5 km from the spot of incident, the police officer in the police station directed the first informant to come with the written report, P.W.-1 came out from the police station, searched the stationery shop and purchased paper and then he narrated the information to be reduced into writing to the scribe Suneet Kumar, these all naturally might have consumed a reasonable time more or less about one hour. The things as proved by the witnesses from their evidence has no contradiction or inconsistency in their statement with regard to the sequence of events after the incident before the submission of written complaint in the police station whereupon the first information report is lodged at about 9:30 P.M. in the night of the date of incident 12.04.1979 . Minor discrepancies as to the time of lodging the first information report 9:30 P.M. or 10:00 P.M. or other calculation of time in between two events in the sequence of their happening could not be expected to be narrated mathematically on exact calculation by a rustic villager. Moreover, such discrepancies are not touching the very root of the incident which has otherwise been proved by the prosecution. In our considered opinion, there is no delay in lodging of the first information report.

103. P.W.-6 Anwarul Aziz, the Sub Inspector of Police Station Kotwali, District Deoria at the relevant date has also proved the submission of Ex. Ka-1 and making chik report on 12.04.1979 in the hand writing and under the signature of Ram Pyare Lal, the constable Muharir who was working under him. He has deposed in the examination-in-chief that the said Ram Pyare Lal, constable Moharir had prepared the chik report before him and being acquainted with his hand writing and signature he proved the same in the trial court. Entry of the criminal case in the General Diary at report no.46 at about 21:30 P.M. on 12.04.1979 was made by Ram Pyare Lal at the same time. Carbon copy was also prepared in the same process simultaneously. The carbon copy is proved by P-W-6 as Ex. Ka-4.

104. The Ex. Ka-1 obviously has signature of scriber Suneet Kumar and thumb impression of the first informant Ishwar S/o Deu, R/o Village Moora Dih dated 12.04.1979. An endorsement to the effect of institution of Case Crime No.132 of 1979, under Sections 147, 148, 149, 302 and 307 of the Indian Penal Code, 1860 is also made under the signature of aforesaid constable Moharir on 12.04.1979 which may be seen on the back page of Ex. ka-1. The Chik report i.e. Ex.Ka-3 was sent to the Magistrate on 13.04.1979 wherein the date of incident is entered as 12.04.1979 at about 08:30 P.M., the case crime number is also entered as Case Crime No.132 of 1979 naming five accused persons described here in above in preceding paras arraigning them under Sections 147, 148, 149, 307 and 302 of the Indian Penal Code, 1860.

105. Learned counsel has argued vehemently about the addition of Section 147, 148, 149 and 307 of the India Penal Code, 1860 subsequently, while initially the case was registered under Section 302 of the Indian Penal Code, 1860. The basis of this argument is only the pattern and order of writing the Sections of the Indian Penal Code, 1860 in the relevant papers. But this argument is not acceptable for the reason the relevant Sections of the Indian Penal Code, 1860 are entered in the ascending order viz. 147, 148, 149, 307 and 302 of the Indian Penal Code, 1860. Nothing is carved out in the cross-examination of P.W.-6 ( Investigating Officer) which tend to show the interestedness of the Investigating Officer or the scribe of the relevant papers in manipulation and interpolation in the array of relevant sections of the penal code.

106. In memo (fard supurdginama) i.e. Ex. Ka-12 and Ex. Ka-13 (sealed samples of blood stained soil and simple soil from the earth of the spot), learned counsel impressed the fact of subsequent addition of sections and ante timed registration of first information report and has also drew attention towards the inquest report i.e. Ex. Ka-5 which lacks the mention of case crime number, name of the accused, order in which the relevant sections of the Indian Penal Code, 1860 are written indicating the subsequent addition of the Sections 147, 148, 149 of the Indian Penal Code, 1860 after getting required number of accused, thus, ante timed registration of the first information report.

107. P.W.-6, the Investigating Officer has stated in his examination-inchief that after registration of the first information report on 12.04.1979 at 21:30 P.M., the statement of first informant was reduced into writing by him then he proceeded to the spot of incident where the dead body of “Ramashre Yadav”, the victim was lying on. Inquest proceeding was started and relevant papers were prepared in his hand writing and signature.

108. We perused the Ex. Ka-5, the inquest report prepared on the spot by the P.W.-6, which has clear mention of time of the registration of first information report at 21:30 P.M. dated 12.04.1979. The spot of the incident is also mentioned as station road, the distance of the spot of incident from the police station is given as 1.5 Kms. The completion of the inquest proceeding is as 23:50 P.M. on 12.04.1979.

109. In witness box, P.W.-6 has stated that the proceeding was over on the same date i.e. 12.04.1979, thereafter on 13.04.1979 at 00:5 A.M., he reduced into writing the statement of the inquest witnesses and eye witnesses namely Bahadur and Rajvanshi, etc, inspected the spot on the pointing out of the first informant, drawn the site map which is proved by him as Ex. Ka-11.

110. In cross examination, the P.W.-6 was asked questions and suggestion about the non mention of case crime number and relevant sections in the letter sent for medico legal examination and post mortem Ex. Ka-7. Assertingly, he answered that by the time of sending the letter for medico legal examination to the concerned doctor and post mortem, the case crime number was already instituted but since the mention of case crime number and sections under which the case was instituted is not mandatorily required as neither there was any such instructions from the department nor the format had any column to fill such entries like the case crime number and relevant sections, therefore, they found no place in those papers. Moreover, there is no formant of Ex. Ka-6 to Ex. Ka-10 wherein case crime number and relevant sections are required to be written. He has further explained the discrepancy in order and pattern of writing the relevant sections with which the accused persons are arraigned in various documents under the investigation proceedings, that the inquest report was prepared on spot in hurry, therefore, the order and pattern of sections entered therein may give an irregular look whereas the charge sheet was prepared in the police station relaxably, therefore, the sections are written therein in a single sequence. However, in both the circumstances the relevant sections are written in the same ascending order of writing.

111. P.W.-6 has absolutely denied the suggestion of addition any sections of the Indian Penal Code, 1860 after getting the required number of accused persons settled or the letter sent for the post mortem was manipulated. Likewise, P.W.-6 has answered to the question as to the ‘Ex. Ka-1’ wherein the earlier writing of parentage and address when checked was found incorrect which was erased and rectified by inserting the correct parentage and address from ink in place thereon. The address is the same as written in the written report given by the first informant. P.W.6 was confronted with several other questions but it is noteworthy here that no question or suggestion as to the replacing altered report in place of original written report is given, as such, the case of the defence, though tried to extract from the cross examination of the aforesaid P.W.-6, with regard to the ante timed first information report is not found proved.

112. We find support from the judgment in Jai Shree Yadav vs State Of U.P [12] , para ‘15’ is reproduced hereunder:-

“It is the case of the prosecution that PW-3 Arif Ali who is a resident of village Nawalpur within the limits of Salempur Police Station came to the said police station on 23.9.1993 at 5.30 p.m. and gave a written report Ext.Ka-2 to PW-8 the Officer-in-Charge of the said police station. According to PW-8, he registered a crime based on the said complaint of PW-3 at 5.50 p.m. on the same day, which has been proved by the production of the general diary of the police station Ex.Ka-8. He also submitted that he sent a special report to the Jurisdiction Magistrate on 23.9.1993 at about 7 p.m. through Constable Dheeraj. He further stated that from the entry in the general diary, it is seen that Constable Dheeraj reported back to the police station at about 8 a.m. on 24.9.1993 . He has denied that the special report was not sent on 23.9.1993. A perusal of the entry made by the Chief Judicial Magistrate, Deoria in the special report shows that the same was received by him on 24.9.1993 but the actual time of the report is not noted in the said entry, however it is clear that the said report was received by him at his residence. Based on this the learned counsel for the appellants had argued that it is possible that this report might have reached later in the day on 24.9.1993, but this argument is not supported by any material on record. On the contrary from the entry made in the general diary of the police station, it is clear that Constable Dheeraj who was entrusted with the job of delivering the special report to the Magistrate had returned back to duty at Salempur Police Station at 8 O’clock on 24.9.1993. Bearing in mind that the distance between Salempur Police Station and Deoria is about 28 to 29 kms. as seen from the records it is clear that the special report has reached the Jurisdiction Magistrate much earlier than 8 O’clock in the morning of 24.9.1993. Though it would have been more appropriate and less controversial if only the concerned Magistrate had noted the actual time of receipt of the special report, still on facts and circumstances of this case as stated above, we are of the opinion that the special report must have reached the Jurisdictional Magistrate much earlier than 8 a.m. Since by then the constable who carried the report had come back to Salempur on 24.9.1993 which fits in with the prosecution case that the same was sent from the police station in the evening of 23.9.1993 at about 7 p.m. So on this count, it cannot be said that the FIR is anti timed.”

113. The Apex Court in the aforesaid case has held considering the points whether or not the first information report is ante timed, requisition sent to doctor to conduct post mortem not containing all the particulars found in inquest report and complaint, like particulars of case, weapon used and names of accused persons, etc. would not lead to the conclusion that first information report was ante timed. Further, it is also held that if time of receipt of special report sent to jurisdictional magistrate is not noted, if delivery of the special report consistently proved by credible evidences mere non noting of the time would not lead to the conclusion that first information report was ante timed.

114. In Brahm Swaroop and Another Vs. State of Uttar Pradesh (Supra) it is held that the whole purpose of preparing the inquest report under Section 174 of the Criminal Procedure Code, 1973 is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating, as in what manner, or by what weapon or instrument, such wounds appear to have been inflicted. For the purpose of holding the inquest, it is neither necessary nor obligatory, on the part of the investigating officer, to investigate into or ascertain as to who were the persons responsible for the death. The object of the proceedings under Section 174 Cr.P.C. is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what what circumstances he was assaulted, is foreign to the ambit and scope of such proceedings, i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.

115. Omissions as contended by the learned counsel for the appellants in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eye witnesses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. Para 8, 9 and 10 of the aforesaid judgment is reproduced hereunder:-

“8. Undoubtedly, there are five blanks in the inquest report. The crime number and names of the accused have not been filled up. The column for filling up the penal provisions under which offences have been committed is blank. The time of incident and time of dispatch of the special report have not been mentioned. Therefore, Shri Tulsi has submitted that the FIR is ante-timed and there is manipulation in the case of the prosecution.

9. The whole purpose of preparing an inquest report under Section 174 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `Cr.P.C’) is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner, or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings under Section 174 Cr.PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned.

10. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery etc. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Evidence of eyewitnesses can not be discarded if their names do not figure in the inquest report prepared at the earliest point of time. The inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witnesses of inquest. (See Podda Narayana & Ors. v. State of Andhra Pradesh, AIR 1975 SC 1252 ; Khujji v. State of Madhya Pradesh, AIR 1991 SC 1853; George & Ors. v. State of Kerala & Anr., (1998) 4 SCC 605; Shaikh Ayub v. State of Maharashtra, (1998) 9 SCC 521; Suresh Rai v. State of Bihar, (2000) 4 SCC 84; Amar Singh v. Balwinder Singh & Ors., (2003) 2 SCC 518; Radha Mohan Singh alias Lal Sahab & Ors. v. State of Uttar Pradesh, (2006) 2 SCC 450; and Aqeel Ahmad v. State of Uttar Pradesh, AIR 2009 SC 1271).”

116. In the case of Brahm Swaroop and Another Vs. State of Uttar Pradesh (Supra), the Apex Court has further held that the delay in sending the special report to the jurisdictional magistrate in every case is not fatal particularly when the defence did not put any question in this regard to the Investigating Officer. Thus, no explanation was required to be furnished by him on the issue. The plea of the first information report being ante timed was also taken in the aforesaid case but such plea was not accepted in view of the evidences available on record which showed that first information report was lodged promptly after the incident as the police station was only one kilometre away from the place of occurrence and names of all accused had been mentioned in the first information report. The relevant paras 14 to 21 are being reproduced hereunder:-

“14. Undoubtedly, there is delay of 5 days in sending the Special Report. This Court in Badam Singh v. State of M.P., (2003) 12 SCC 792, while considering this issue held that where the investigating officer categorically stated that he was not in a position to give any explanation for the delay in sending the Special Report, it may be fatal to the prosecution’s case.

15. However, a larger Bench of three Judges in Balram Singh & Anr. v. State of Punjab, (2003) 11 SCC 286, held as under:

“10…..we notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the Jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6-51990, we do not think that the delay thereafter in communicating it to the Jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the Jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case.”

16. In State of Rajasthan v. Teja Singh & Ors., (2001) 3 SCC 147, this Court held that the receipt of special report by the Magistrate is a question of fact and the prosecution may explain the delay in sending the special report. However, the explanation so furnished by the prosecution must be convincing and acceptable. The same view has been re-iterated in Ramesh Baburao Devaskar & Ors. v. State of Maharashtra, (2007) 13 SCC 501.

17. In Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320 , this Court held that delay in forwarding the Special Report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR.

18. In Aqeel Ahmad (supra), this Court held that the forwarding of the report to the Magistrate is indispensable and absolute and it must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution’s case and the introduction of a distorted version by deliberations and consultation and to enable Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the Investigating Officer that would not affect the credibility of the prosecution’s witnesses.

19. In State of Kerala v. Anilachandran @ Madhu & Ors., AIR 2009 SC

1866 , this Court placed reliance upon its earlier judgments in Pala Singh v. State of Punjab, AIR 1972 SC 2679; and Sarwan Singh v. State of Punjab, AIR 1976 SC 2304 and held that the police should not unnecessarily delay sending the FIR to the Magistrate as the delay affords the opportunity to introduce improvement and embellishment thereby resulting in a distorted version of the occurrence. However, in case the prosecution offers a satisfactory explanation for the delay, the court has to test it. An un-explained delay by itself may not be fatal, but it is certainly a relevant aspect which can be taken note of while considering the role of the accused persons for the offence. A similar view has been re-iterated in Pandurang Chandrakant Mhatre & Ors. v. State of Maharashtra, (2009) 10 SCC 773.

20. In Akbar Sheikh & Ors. v. State of W.B., (2009) 7 SCC 415, this Court held as under:

“44. Submission of Mr Ghosh that the first information report is ante-timed cannot be accepted. It is possible that PW 1 because of lapse of time has made certain statements which go beyond the record viz. holding of inquest before the FIR was recorded. The number of accused persons in the first information report might have also been put by the investigating officer at a later point of time. The fact that the post-mortem examination had been held on 16-5-1982 itself goes a long way to establish the genesis of the occurrence. While saying so, we are not unmindful of the fact that the first information report was sent to the Magistrate after twenty-four hours. But then, in a case of this nature such a delay may not, by itself, be held to be fatal”.

21. In the instant case, the defence did not put any question in this regard to the investigating officer Raj Guru (PW.10), thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report. More so, the submission made by Shri Tulsi that the FIR was ante-timed cannot be accepted in view of the evidence available on record which goes to show that the FIR had been lodged promptly within 20 minutes of the incident as the Police Station was only 1 k.m. away from the place of occurrence and names of all the accused had been mentioned in the FIR.

117. In the present case, in the context of the chronological sequence of the proceeding noted above, the prompt lodging of the first information report igniting the machinery for investigation, cannot be ruled out.

118. P.W.-6 has been successful in proving the documents of proceeding till sending of the dead body for post mortem examination to the doctor. The dead body was sent vide paper number Ex. Ka-7 for the post mortem where the same was received in the mortuary by the concerned doctor on 13.04.1979 , as such, obviously there have been no inordinate delay in lodging of the first information report on the basis of written complaint made by the P.W.-1 in Police Station Kotwali, District Deoria by the P.W.6 , the Investigating Officer. The argument of the first information report being registered ante timed is not acceptable.

Defence taken and opportunity availed by the accused persons in the trial.

119. The accused persons have tried to carve out the defence from the cross-examination of the prosecution witness and then to prove their defence by producing witnesses D.W.-1 (Mahadeo Mishra), D.W.-2 ( Anardan Singh) and D.W.-3 (Sacchidanand Mani Tripathi) before the trial judge for examination. From the perusal of entire cross-examination of all the witnesses, it appears that the defence as against the prosecution case was tried to set on the ground of enmity of first informant and his family with the accused Prahlad (of Village Moora Dih). The defence as against the accused “Brijraj” is to the effect that he was falsely implicated in the case by the police in collusion with the other witnesses of fact P.W.1 , P.W.-2 and P.W.-3. Admittedly from the cross-examination, the learned counsel could not carve out enmity of witnesses P.W.-3 with any of the accused. So far as the P.W.-2 is concerned, he too was heavily grilled in cross-examination to carve out any interestedness of him in false implication of the accused-appellant for the reason of his relation with P.W.-1 and his family. Nothing could come out of the gruelling examination of this witness.

120. In the examination of accused persons under section 313 of The Code Of Criminal Procedure, 1973, the appellant “Prahlad” (of village Moora Dih) has mostly expressed ignorance with regard to the evidence as to the topography of the spot of incident, the source of light thereon but admitted the fact of conviction of deceased “Ramashre” in the murder trial of Shyama (his brother) and, thus, factum of enmity was admitted by him. He has further admitted the evidence of P.W.-1 as to the inimical relation with deceased “Ramashre” since before 2 to 3 years from the incident in question though he denied from the role of exhortation assigned to him by the prosecution in the incident in question. The evidence as to the fact of chasing him and his companions after commission of the crime on relevant date and time of the incident and, thus, set forth the defence of witness deposing falsely for the reason of enmity with him as well as being related with the deceased “Ramashre. Prahlad (of Village Moora Dih) and Ram Oudh had also replied the query of the Court confronting them with the evidence of prosecution witnesses on the same line and length under section 313 of the Cr.P.C. Likewise, Brijraj had same answers to the queries about the other evidence but stated the false implication in the case against him and evidence of the prosecution witness in collusion with the police by reason of enmity of police with him.

121. In our view, mere denial from the presence on the spot and involvement in commission of crime as against the proved case of prosecution in this regard is not acceptable. We have perused the statement of defence witnesses. Whether to make any difference as to the acceptability of the defence taken by the accused persons in the case. The D.W.-1 Mahadeo Mishra who was called as the defence witness to produce the dak bahi (Despatch Register) dated 12.04.1979 which he was unable to produce before the Court for the reason dak bahi having been weeded out. No argument could be made about the relevancy of dak bahi in the case as the general diary of the police maintained as per rules for entering the day to day events and the relevant extract of the case diary had been produced before the court. Likewise, D.W.-2, the reader of the Court of the District Magistrate was also examined for the purpose of proving the application of the accused persons addressed to the District Magistrate but how relevant and admissible that fact would be could not be explained. The evidence of this witness, therefore, is not of any avail against the proved case of prosecution with regard to the identification and involvement of accused persons in the incident dated 12.04.1979 at the relevant time on the spot of the incident in the killing of the deceased “Ramashre”.

122. D.W.-3, is also of no avail as the proceedings on record of the trial is very much before this Court of appeal and how and to what extent anything otherwise and beyond the lower court record would be relevant could not be argued by the learned counsel.

123. Against the proved case of prosecution by the above noted evidences, the defence taken by the accused is not established and remains unfounded in the evidence of the defence witnesses.

We find no substance in the submissions of the learned counsels for the appellants in the appeals so as to interfere in the impugned judgment and order of conviction and sentence dated 14.09.1983 passed by learned Additional Sessions Judge, Deoria in Sessions Trial No.92 of 1982, under Sections 147, 148, 302/149, 324/149 of the Indian Penal Code, 1860.

Operative

124. On the discussion made hereinabove, we do not find any force in the criminal appeal of “Brijraj” in Criminal Appeal No.2170 of 1983 and criminal appeal of Prahlad (of Village Moora Dih) in Criminal Appeal No.2169 of 1983 against the judgment of conviction and order of sentence passed by learned Additional Sessions Judge, Deoria in Sessions Trial No.92 of 1982 dated 14.09.1983, under Sections 147, 148, 302/149 and 324/149 of the Indian Penal Code, 1860, therefore, the appeals deserve to be dismissed and hereby both the appeals are dismissed.

125. The judgement of conviction and order of sentence in Sessions Trial No.92 of 1982 dated 14.09.1983, under Sections 147, 148, 302/149 and 324/149 of the Indian Penal Code, 1860 is affirmed. The bail bonds and surety bonds on behalf of accused-appellant “Prahlad” (of Village Moora Dih) are hereby cancelled.

126. The Chief Judicial Magistrate, Deoria is directed to take into custody the accused-appellant “Prahlad” (of Village Moora Dih) and send him to jail in compliance of this judgement.

127. The lower court record be sent back to the trial court for further action. Certify this judgment to the court below for further necessary action and compliance.


[1] (1983) 3 Supreme Court Cases 217

[2] (1973) 2 Supreme Court Cases 793 (801)

[3] (2017) 11 Supreme Court Cases 129

[4] (2003) 7 Supreme Court Cases 643

[5] (2011) 6 Supreme Court Cases 288

[6] (2012) 8 Supreme Court Cases 651

[7] (1983) 1 Supreme Court Cases 218

[8] (2003) 6 Supreme Court Cases 380

[9] (2011) 9 Supreme Court Cases 479

[10] (2001) 7 Supreme Court Cases 318

[11] (2019) 8 Supreme Court Cases 596

[12] . (2005) 9 Supreme Court Cases 788

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